Fenton v. Fisher, 106 Pa. 418

Fenton v. Fisher

106 Pa. 418 | Pa. | 1884

Mr. Justice Trunkey

delivered the opinion of the court,

“ Any interest which any person or persons may have in the real or personal estate of any decedent, whether by will or otherwise, or so much thereof as may be necessary to satisfy the demand and costs of claimant, shall be subject and liable to be attached by any creditor or creditors of such person or persons, by writ or writs of foreign attachment in the hands or possession of the executor or administrator, or in whose hands or possession soever the same may be, as fully and effectually as in other cases: ” Act, July 27,1842, P. L., 436. The Act of April 13, 1843, P. L., 235, provides that all such interests shall be “subject to be attached and levied upon in satisfaction of any judgment, in the same manner as debts due are made subject to execution.” These remedial statutes are too plain for need of interpretation, and since the decision in Gochenaur’s Executor v. Hostetter, 18 Pa. St., 414, the courts have not undertaken by construction to thwart the intendment of the legislature as to a creditor’s right to attach his debtor's interest in a decedent’s estate.

*420Edwin E. Fisher, as one of the heirs of Christian Fisher, deceased, is entitled to a distributive share in the estate. Before the writ of execution attachment was issued the real estate was converted into money for the purpose of distribution, the sale having been made by a trustee appointed by the Orphans’ Court in a proceeding in partition. The interest of the debtor was subject to attachment at any time after the death of the decedent, whether converted or unconverted, and after conversion, while the money was in the hands of the trustee, he was a person within the meaning of the statute as clearly as if the interest were in the hands of an executor or administrator. In partition when all the heirs refuse to take the real estate at the valuation, the court may make a decree authorizing and requiring the executor or administrator to make sale, but if the executor or administrator neglect or refuse to execute the order, or in ease there be no executor or administrator, the court may appoint a trustee to make such sale, who shall be subject to the same restrictions, and have the same powers, and whose proceedings shall have the same effect as in case of such sale by an executor or administrator: Act March 29, 1832, P. L., 203; Act Feb. 24, 1834, P. L., 86.

Under the statute, for purpose of sale, account and distribution of the proceeds, the trustee stands as if an executor or administrator. His office is of the same nature as regards the sale. He is not in any sense a public officer, nor is he a mere agent of the court, as a receiver. Whether the sale is effected by the administrator, or a trustee specially appointed, it is judicial, the terms stipulated by the court, and done in pursuance of the statute to accomplish distribution among the parties interested. Another statute subjects such interests to attachment in whosesoever hands or possession they may be. This is not the case where money is paid into court, or is in the hands of an officer or agent of the court, or of a public officer.

The decree awards the money to Gr. R. Fox, attorney for Edwin E. Fisher, and the plaintiff in error claims that the execution creditor cannot recover because Fox is not a party. It does not appear that Fox has any interest in the money, nor why it was awarded to the attorney instead of his client, the owner; but as it is to him as attorney, he is a mere trustee for the owner. The mone3r had not come into the possession or hands of Fox, the attorney of Fisher, and there was no reason why he should be made a party.

Judgment affirmed.